Rockland County v. Town of Clarkstown (Buckley Farms)

Lead Agency Dispute

New York State Department of Environmental Conservation
Commissioner's Determination of Lead Agency
under Article 8 of the
Environmental Conservation Law

PROJECT: Proposed Buckley Farms Subdivision, Town of Clarkstown, Rockland County

DISPUTING AGENCIES: Rockland County Drainage Agency and Town of Clarkstown Planning Board

This decision to designate the Rockland County Drainage Agency as lead agency for the conduct of the environmental review under the State Environmental Quality Review Act (SEQRA) is made pursuant to Article 8 of the Environmental Conservation Law (ECL) and 6 NYCRR Part 617. This decision is based on my finding that the potential impacts from the proposed Buckley Farms Subdivision are of more than local concern and that they require an agency with a comparably broader perspective to lead the environmental review. This decision does not limit the responsibilities of the Town of Clarkstown or the other involved agencies in the exercise of their own separate jurisdictions. Specifically, zoning and land use decisions will remain under the purview of the Town of Clarkstown.

The proposed project is the application by New City Development Corporation to subdivide an approximately 30-acre vacant parcel of land into 66 lots for the construction of single-family residences. The Demarest Kill, a New York State (NYS) Class "A" protected stream, runs through the parcel. Under either the originally proposed layout or a later alternative submitted by the developer and included in the Town of Clarkstown Planning Board's reply in this dispute, a stream crossing would be required to access about 2/3 of the lots; several of the lots would include land subject to an 80-foot wide drainage easement along the stream; and several additional lots are wholly or partially within the 100-year floodplain. The Demarest Kill is a tributary to the West Branch of the Hackensack River which, in turn, feeds Lake DeForest, a major drinking water supply for Rockland County, NY, and Bergen County, NJ.

In order for the project to be constructed as proposed, the following state and local agencies have authority to issue discretionary approvals:

• the Town of Clarkstown Planning Board (Planning Board) must issue subdivision and site plan approvals;

• the Rockland County Drainage Agency (RCDA) must issue county-regulated stream and wetlands approvals; and

• the NYS Department of Environmental Conservation (DEC) must issue ECL Article 15 permits for all necessary stream crossings (utilities as well as the road), any lot grading which would intrude into the stream corridor and possibly stormwater outfalls; may need to issue Clean Water Act Section 401 Water Quality Certification (WQC) if the subdivision development will require alterations of federally protected wetlands; and must ensure compliance with DEC's general SPDES permit for construction sites.

The agencies that have expressed a desire to act as lead agency for the environmental review are the Planning Board and the RCDA. The DEC, through its Region 3 Environmental Permits' staff, has stated it believes that the project as proposed raises the potential for significant regional as well as local impacts, and that either contesting agency should be competent to conduct the environmental review. The Rockland County Department of Health responded briefly that it considered most of the impacts to be primarily local, and both it and the Town of Clarkstown Building Department supported the Planning Board to lead the environmental review.

In resolving a lead agency dispute, I am guided by the three criteria listed in order of importance in 6 NYCRR Part 617.6(b)(5)(v). These are: (1) whether the anticipated impacts of the action being considered are primarily of statewide, regional or local significance (i.e., if such impacts are of primarily local significance, all other considerations being equal, the local agency involved will be lead agency); (2) which agency has the broadest governmental powers for investigation of the impacts of the proposed action; and (3) which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.

In considering the first criterion, I must look at the range of anticipated impacts and determine whether they are primarily of statewide, regional or local significance. The RCDA identified several potentially significant impacts from this residential development which it considered of regional significance, including: aggravating flooding problems which exist both up and downstream of the site along the Demarest Kill; lowering of water quality of DeForest Lake; ineffective management of storm water; erosion along the Demarest Kill; loss of wetlands and floodplain plus the biota they support; and potential for cumulative effects from this project in combination with other applications also proposed or before the RCDA. The Planning Board identified a similar range of potential impacts, adding changes in character and density of land use; stream channel alterations and siltation; floodplain elevation changes; and construction, noise and traffic impacts; and characterized all but the potential flooding impacts as local. The DEC reinforced the regional significance of potential flooding impacts, emphasizing the long history of flooding along the Demarest Kill up as well as downstream of the project site.

I find that the project has the potential for both locally and regionally significant impacts; however, the regional impacts from the construction of this project are compelling. An interstate water supply is clearly more than a local resource, and the potential for impacts on that water supply is of regional significance. Similarly, a development involving stream crossing and potential stream and floodplain alteration in an already flood prone area, with the potential to aggravate off-site flooding, also goes beyond simple local interest. Given this potential for impacts to resources of regional concern, I find that the impacts are primarily of regional significance and that an agency with regional jurisdiction would be the appropriate lead agency for this project.

In considering the second criterion, breadth of authority, several of the involved agencies have governmental powers over a sufficiently large geographic area to address regional impacts, but not all have broad powers to investigate impacts. Both the DEC and the RCDOH would actually have relatively narrow authority over the project as proposed. The Planning Board, while holding broad authority within its geographic area, is limited in jurisdiction to its own township. The RCDA, on the other hand, has explicit authority under the Rockland County Stream Control Act (Chapter 846 of the NYS Laws of 1975) and the Rockland County Freshwater Wetlands Act (Chapter 270 of the laws of Rockland County) to address both the substance and the geographic breadth of the potential off- as well as on-site impacts of the proposed development.

The third criterion relates to the capacity of an agency to provide for a thorough environmental assessment. Both disputing agencies possess both the expertise and experience to undertake an adequate environmental review of the proposed action.

For the foregoing reasons and based on the facts presented, I conclude that the Rockland County Drainage Agency should be lead agency for the conduct of the environmental review for the proposed Buckley Farms subdivision due to the regional nature of the significant impacts and its broad governmental powers to investigate the impacts.

Again, this decision in no way limits the jurisdiction or responsibilities of the Planning Board and the other involved and interested agencies. The Planning Board will still be required to consider and approve the requested land use changes, subdivision and site plans for the specific development proposals. The specific expertise of the other town and local agencies in evaluating portions of the infrastructure necessary to support the construction and use of the subdivision will be necessary to ensure that all components are technically and environmentally appropriate for the site in question. By making the underlying environmental review a cooperative effort involving all of the agencies having a resource concern, a sufficient environmental record can be developed by the RCDA to satisfy the needs of all agencies when subsequent approvals are needed.